ROBERT MILLER SR V CAMERON CUNNINGHAM
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT MILLER, SR.,
UNPUBLISHED
April 25, 1997
Plaintiff-Appellant,
v
No. 182566
Macomb Circuit Court
LC No. 94-002365-NO
CAMERON CUNNINGHAM, d/b/a
CUNNINGHAM AND ASSOCIATES,
Defendant-Appellee.
Before: Young, P.J., and Taylor and R.C. Livo,* JJ.
PER CURIAM.
Plaintiff filed this negligence action against defendant, his landlord, for injuries sustained during a
fight in a common area of defendant’s building. The fight was with two men who were residing or
staying with another tenant of the building. The trial court held that defendant did not have a duty to
protect plaintiff and granted summary disposition to defendant pursuant to MCR 2.116(C)(10). Plaintiff
appeals as of right. We affirm.
We review the trial court’s decision to grant summary disposition to defendant pursuant to
MCR 2.116(C)(10) de novo. Baker v Arbor Drugs, Inc, 215 Mich App 198, 202; 544 NW2d 727
(1996). Summary disposition should be granted under MCR 2.116(C)(10) if, except as to the amount
of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995). The trial court is
required to review the pleadings, affidavits, depositions, admissions and any other documentary
evidence. After reviewing the evidence and all reasonable inferences drawn from the evidence, the
court must decide whether there is a genuine issue of material fact present to allow the case to proceed
to trial. Baker, supra, 215 Mich App 202.
Defendant moved for summary disposition on the ground that he did not owe a legal duty to
plaintiff on the facts of this case. The question of duty is one of law for the court. If no legal duty exists,
then summary disposition is appropriate. Schmidt v Youngs, 215 Mich App 222, 224-225; 544
* Circuit judge, sitting on the Court of Appeals by assignment.
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NW2d 743 (1996). In this case, the trial court was required to look beyond the pleadings to determine
whether a question of fact existed regarding the forseeability of the risk of harm resulting from third party
criminal acts. Holland v Liedel, 197 Mich App 60, 63; 494 NW2d 772 (1992). Plaintiff failed to
show that there was a genuine issue of material fact to avoid summary disposition.
Plaintiff was assaulted during a fight involving two guests of another tenant of the building where
plaintiff resided. Plaintiff’s theory was that defendant, as the landlord, knew of the violent propensities
of both of these men and defendant should have taken action before the date of the fight to ensure that
these men were removed from the premises for the safety of the tenants of the building. In support of
his theory, plaintiff produced an affidavit in which he detailed past incidents with these men. He also
averred in the affidavit that he informed defendant of the problems these men were causing in the
building.
Plaintiff’s affidavit contradicts his prior deposition testimony in which he characterized his
relationship with both men as amicable and neighborly, with the exception of one incident where one of
the men tried to sell plaintiff’s truck. It is well settled that a party may not raise an issue of fact by
submitting an affidavit that contradicts his prior clear and unequivocal testimony. Gamet v Jenks, 38
Mich App 719, 726; 197 NW2d 160 (1972). Hence, the trial court could disregard the contradictory
affidavit in deciding the motion for summary disposition. Kaufman & Payton, PC v Nikkila, 200
Mich App 250, 256-257; 503 NW2d 728 (1993).
As such, plaintiff presented no evidence that defendant knew or should have known that the
commission of criminal acts by these two men was foreseeable and that defendant failed to take
reasonable care to keep the physical premises under his control reasonably safe. Stanley v Town
Square Cooperative, 203 Mich App 143, 148-150; 512 NW2d 51 (1993). There was no evidence
that either of these men were aggressive or violent towards other tenants. Plaintiff’s prior incident with
one of the men, over the attempted sale of plaintiff’s truck, did not involve actual or threatened violence.
Since no evidence supported plaintiff’s theory that it was foreseeable to defendant that these men were
a threat to tenants of the building, no factual dispute exists regarding whether defendant allowed
dangerous conditions to exist in his building as he had no reason to suspect that these men presented a
safety risk to the building’s tenants. Therefore, defendant was properly granted summary disposition.
The trial court ruled it was dismissing plaintiff’s case because defendant did not owe a duty to
plaintiff. While the trial court made some comments about its dislike for this type of case, the court’s
decision to dismiss this matter was premised upon a valid and correct legal ruling.
Plaintiff included a second count in his complaint for breach of his lease agreement in relation to
the assault, but he has not presented any argument on appeal related to the trial court’s dismissal of that
claim. Therefore, as this issue is abandoned, the lower court properly dismissed plaintiff’s entire
complaint on summary disposition.
Affirmed. Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Robert P. Young, Jr.
/s/ Clifford W. Taylor
/s/ Robert C. Livo
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